Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Darren Smyth, Nicola Searle, Eleonora Rosati, David Brophy, Alberto Bellan and Merpel, with contributions from Mark Schweizer. You're welcome to read, post comments and participate. You can email the Kats here

From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 5 December 2011

From her basket, the AmeriKat
steadies her gaze on getting
better and on the Unitary Patent debate

Good morning, from the Amerikat! Monday is here and there is more to report on the proposed Unitary Patent and Unified Patent Court. Although still curled up in her cat basket with tonsillitis, the AmeriKat knows she is not alone in being horrified at the speed that this runaway legislative train is hurtling towards a pan-European patent disaster.

Readers will know from her posting on Friday night that there is a meeting of the Competitiveness Council this morning where ministers will debate on the creation of unitary patent protection, translation arrangements and the unified patent court. Last Thursday, to the surprise of many, EU Parliament’s rapporteurs for the Legal Affairs Committee struck a political agreement with the Polish Presidency on the latest draft of the Draft Agreement (Kat post here). This morning the Polish Presidency hopes to obtain agreement on a number of “outstanding, politically sensitive issues” including the seat of the Unified Patent Court. Agreement on the proposals will have to be confirmed by both the Parliament (after a vote in committee on 19 and 20 December) and the Council.

The complexity of the proposed court structure, lack of clarity on financing, the expertise of the appointed judges, the dubious assertions that the court will be cost effective and further problems plague the draft agreement and proposals. Of most universal concern by the patent profession is that of Articles 6 to 8 of the Proposed Regulation which deals with direct infringement, indirect infringement and limitations. Articles 6 to 8 set out the substantive law on patent infringement and are based upon the Articles 25-27 of the failed Community Patent Convention 1989. Inclusion of Articles 6 to 8 in the Proposed Regulation (proposed amendments here and here), and not just in the Draft Agreement, will "make substantive patent law part of EU legal order." Patent cases involving a “new” unitary patent would be susceptible to the preliminary ruling jurisdiction of the Court of Justice of the European Union (CJEU/ECJ), while “old” European patents would not. Cue the ensuing costs, years of delays, uncertainty and substantive patent law being interpreted by a panel of judges who do not possess the skills and level of expertise that the judges referring the questions in the first place are required to possess under Article 10 of the Draft Agreement. [“And we all know what a crackerjack job the CJEU has done with some of its other intellectual property law referrals….”, hisses the AmeriKat]. The entire “package” as currently proposed appears to be the antithesis of what a European unitary patent was meant to achieve in the first place – being a cost-effective, efficient, certain and user-friendly system.

In his speech at last week’s European Patent Lawyers Association (EPLAW) Congress, Dr. Jochen Pagenberg -- Past President of EPLAW (as of Friday, when his term ended, Dr. Christian Gassauer-Fleissner now assumes the Presidency), one of the founding partners of eminent German-based law firm Bardehle Pagenberg and IPKat friend -- succinctly summed the proposals as follows:

“If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible. If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible. And if somebody intended to lay a solid ground for failure of this - at some time very promising - project, then he will probably succeed.”

With all these problems and the concerns of so many professional bodies warning against the EU rushing into such poorly thought through legislation you would think that the MEPs, especially the Rapporteurs for the proposals would have taken notice. Apparently not.

Yesterday evening the AmeriKat received an e-mail from Dr. Pagenberg that alerted her to the video of the debate in the Legal Affairs Committee that took place on 21 November 2011 on the patent proposals and Articles 6 to 8. The video is available online here (from minute 15:27). The Amerikat watched and was disappointed (although sadly not surprised) by what she heard. However, a voice of reason was heard from Cecilia Wikström, MEP from Sweden, who argued strongly for the removal of Articles 6-8 of the Regulation and their insertion into the Draft Agreement, instead. Citing the unanimous resolution of the Intellectual Property Judges Association, extracts of Professor Krasser's opinion (here), Professor Sir Robin Jacob’s opinion (here) and Dr. Pagenberg, Ms. Wikström clearly explained the legal consequences of the inclusion of Articles 6 to 8, the negative practical consequences for the end-users and the imperative need to remove the articles. She said in closing (please note the AmeriKat could not find a transcript so had to transcribe the quotes from the debate herself; please alert her to any material errors):

Ms. Cecilia Wikstrom

“This is the position of the most experienced academics and experts of Europe on patent law. My friends and colleagues, who are we in this room not to follow their advice - their unanimous advice? And the position is further shared, for example, by Business Europe and the International Chamber of Commerce. Although I have been raising this issue with many people, thus far I have not until now heard one single argument on the substance in favor of the inclusion of these articles in the Regulation creating the unitary patent. The only argument I have heard against this proposal is that some lawyers, notably in the Commission’s legal service, are of the opinion that these articles need to be included in order to allow a legal basis under Article 118 [of the Treaty on the Functioning of the EU ("TFEU")]. Although I have asked for a clarification on why this would be the case, they have not been able to provide me an answer until now. And they still haven't. I am still waiting for it. I find it remarkable and deeply unsatisfactory. This idea is also unanimously rejected by all the judges, the lawyers and others that I have mentioned, who argue that it is perfectly possible to adopt a Regulation under Article 118 without these articles. Perfectly possible. These are some of Europe’s foremost experts in the field and I think we have to consider their arguments very carefully.”

After Ms. Wikström's clear and logical reasoning supporting the removal of Articles 6 to 8, Mr. Bernard Rapkay, a self-described “legal layman” and the Legal Affairs Committee Rapporteur for the unitary patent protection portion of the package, replied as follows (please not this is a transcription of the translation provided on the Parliament's website, so there may be errors - alert the Kat in the usual way):

Mr. Bernard Rapkay

“Experts seem to be unanimous. But here, allow me to assess that in a political way. I could probably find a unanimous agreement of experts of a different view. This impression that experts are all singing from the same hymn sheet and that they want this, I think I have to say that's not an impression I’ve gained. I’ve talked to experts -- I am not suggesting that they are saying the complete opposite -- but those I have asked have said "No, it does not make any sense to get rid of [Articles 6 to 8]." There are many who believe that they want this in the Regulation…

It is the unanimous view of some experts. There are always interests at play. I have received letters from the German Association of Translators saying “Well what you are doing is terrible. This question of three languages. No, no -we need all languages”. One can understand where they are coming from. I mean, what we are not doing is guaranteeing the future of German translators. Everyone has got their interests. Now, I have a vague idea of what interests are at play. I know what one interest group is about and what the other interest group is about and at the end of the day we have got to arbitrate a decision... I think we should not tinker with the structure too much.

You know I am something of a legal layman – I am happy to listen to legal experts, but the point is that there are all sorts of differing legal viewpoints but at the end of the day our job is to take a political decision.”

The AmeriKat is deeply unimpressed by this response and the brushing off of the legitimate and reasoned concerns of users, judges, attorneys and an entire industry who will ultimately be subjected to the consequences of these proposals. She also finds it ludicrous that Mr. Kapkay would classify the users, judges, lawyers and participants of the proposed system as a collective as an “interest group” in the sense he seems to intend it. There also appears to be some degree of clinging on to this “package deal” of three proposals come what may and to the inclusion of Articles 6-8 of the Regulation because of the ghostly spectre of Article 118 TFEU. Who are these “experts” who insist that Articles 6 to 8 should be included because of Article 118 TFEU?

Dr. Pagenberg had this to say to the AmeriKat:

Dr. Pagenberg

“It is a shame that after so much effort for quality and user satisfaction over four years and with the contributions of the highest and most experienced patent judges, the Commission and the Parliament together with a majority of Member States, really dare to adopt a patent system - a system where its most important rules are being heavily opposed by the entire industry, where a number of key features have not even been discussed so far (procedural rules, litigation cost, procedure of appointment of judges etc.), and other urgent amendments of the draft Court Agreement have not been accepted (extending transitional period, allowing parallel national litigation at least for SMEs etc.).

I confirm what your comment assumed and what EPLAW already said in different words in our Resolution: the package as a whole is now in essential aspects worse than the system it is meant to improve and that the promises by the Commission to reduce costs, reduce uncertainty and improve predictability, to improve efficiency, to establish clear procedural rules and to select judges for their competence have been entirely disregarded by the Polish Presidency which exercised an enormous time pressure only to proclaim "success" at the end of its presidency. It remains to be seen whether the year 2003 is not repeated here when the "Common Political Approach" negotiated by politicians was finally rejected as unacceptable by industry."

The AmeriKat encourages all members of our very large "interest group" (a.k.a patent litigators, attorneys, users, academics, judges, etc) to keep up the pressure on and conversations with their national governments and MEPs. Its not too late to change this for the better and to work to achieve the original aim of creating a user-friendly and efficient unitary patent system.

UPDATE: The AmeriKat tuned into this morning's debate, but after 5 minutes on SMEs and business competitiveness (although at the time the video was marked on the website as being about the patent proposals), the cameras were switched off. "Why should European policy debates be anything other than public?", demands the AmeriKat. She now understands from the Council's website that the Council's Agenda has been updated to delete the legislative policy debates on the creation of unitary patent protection and translation arrangements that were scheduled this morning. The Council's website seems to indicate there will be a public debate on unitary patent protection on the translation requirements at 4:00 CET (here), after the 3:30 CET press conference (here). What the removal of these items from the Agenda really means is yet to be entirely clear to the AmeriKat.

In the meantime, readers interested in contacting the MEPs can, courtesy of Vicki Salmon, click here for their details.

Mr Rapkay is sure he has no difficulty seeing through the "special interest" of each group that lobbies him. That's clear from his statement. One would have thought then, as an intelligent social democratic politician from Germany, he is quite capable of distilling out of the various lobbying efforts (that he professes to listen to so assiduously) what's best for his voters. But of any urge or intention to distill, there is no sign whatsoever. Instead, I see a total cop-out and disinclination to bother even to try. What a disappointment. What a betrayal of his voters.

Ask him in ten years about the trainwreck and he will say "It's all the fault of the interested circles. Hindsight is a fine thing. Why didn't they at the time warn me this would happen".

Then again, if the bulk of the lobbying that reaches Mr Rapkay is in German, on behalf of his voters back home, but nevertheless Herr Rapkay ignores it all, many Kat readers would probably commend him for his excellent judgement. As Committee Rapporteur, who actually is he serving, his voters or his committee?

Great post Americat. I would dearly love to lobby against this appallingly rushed and ill-thought-through legislative effort, but don't know where to start. Do you (or any of your readers) have suggestions as to existing efforts that I (and other readers) could add our voices to?

One of the suggested changes has indeed been made, at least in the latest documents available - the extension of the transitional period for holders of European patents. However, that does leave a number of other points not addressed.

I think the assessment of some politicians may be simply that, since the system is supposed to save litigation costs, this must mean that judges and lawyers would lose some income, and so you would expect these groups to lobby against the plan, using any arguments possible, but these are purely self-interested arguments which should not be taken too seriously.

To counter this, perhaps every critic (and supporter) of the plan should be asked to estimate how much they would personally gain or lose, if it went ahead? (Following this advice, I would not gain or lose anything if it went ahead or not).

If this plan is opposed by the entire industry, and many previous versions have been opposed by the entire industry, perhaps the industry should make the effort to draft proposals that they can agree are perfect, instead of knocking down each proposal from the EU that comes along?

To Anonymous at 9:51, I will forward a copy of some relevant MEP contact details the IPKat if you want to start lobbying.

CIPA (and other UK industry and representative groups) has also be writing to the IPO and to Ministers, including David Cameron, Baroness Wilcox, Kenneth Clark, and others. One of our members has also been speaking to the Labour front bench.

To Steve Peers - our voices are raised not because our income will be cut, but because the proposals are unlikely to deliver the promised cost savings. In fact, the current proposals are likely to increase our incomes as we have to go repeatedly to court to find out what the politically compromised provisions mean!

We are in favour of a system which will cost less. We have been putting forward amendments to the proposals - and this will continue. The difficulty is getting those in charge of the documents to listen and incorporate the changes. Instead, it seems that the time table to deliver a package -any package - takes precedence over delivering a package that delivers the promised benefits.

Whatever the flaws of the current plans, I don't think it can seriously be suggested that, taken as a whole, the EU is 'rushing through' its plans for patents. The politicians know this full well - so claims that an EU patent is being 'rushed' may well be undercutting the sounder critiques of the merits of the currrent proposals.

More specifically, quite apart from the fact that discussions on an EC patent convention first began in 1959, and have continued on and off ever since, the legislative parts of the current package were proposed by the Commission in August 2000, and work on (in effect) the current version of the draft litigation treaty began in 2007, with a partial draft text first circulated in August 2008:

http://register.consilium.europa.eu/pdf/en/08/st07/st07728.en08.pdf

The Polish presidency simply restarted discussions where they had been left off in March 2009, when the Court's opinion was requested. The work on the draft convention anyway took some account of the draft EPLA, which had been discussed for some years beforehand, as the Commission had suggested in its discussion paper of 2007.

Furthermore - as for 'years of delays' regarding preliminary rulings, the average wait for a judgment of the Court of Justice for a request for a preliminary ruling in recent years has been 16-17 months.

The rules on expertise of the judges appear in Arts. 10 and 11 of the draft treaty. They are actually slightly more detailed than the rules which apply for appointments to the EU courts.

The most recent document available contains some detailed estimates of costs, plus a commitment to complete a first draft of the rules of procedure of the Court within three months, based on expert consultations.

Anonymous at 11:19 - Please see my Update in the post. The two legislative policy debates on unitary patent protection and on the translation requirement have been removed from the Agenda. Further, the cameras are currently off in the Council room so you are not missing much!

At the moment, there appears to be a debate scheduled at 4PM regarding the translation arrangements. I am unsure what happened to the non-legislative debate on the unified patent court, but perhaps things will be made clear during the press conference at 3:30 CET.

Anonymous at 9:51 - please see the Update for a list of MEP contact details.

I don't think it can seriously be denied that the proposals are being rushed through. To assert the contrary may well cast doubt on arguments for the merits of the currrent proposals (or maybe that's a bit marginal).

I suppose if one is a politician, then the "quality" of a piece of legislation is not even worth thinking about. Nothing's perfect. Everything's flawed. The Law of Unexpected Consequences can save you as often as it hurts you.

Reflect on the travails of the US Congress in finally pushing through patent reform, after so many years of failure. Now it's Europe's turn.

Did not somebody once advise that politics is "The art of the possible". For a politician then, failure to agree is 100% failure while reaching an agreement, any agreement, counts as 100% success.

It is extremely difficult following events withing the EU and, as a nobody, my voice can have no effect. I am therefore grateful that Robin Jacob is doing his best to get his voice heard. I agree with many of his thoughts (not just the unitary patent, but on the commission's reports on patents in the pharmaceutical industry, for example) and it would appear that he is not a lone voice among the most senior members of the IP profession Europe.

The final comment of the previous thread on this subject noted that politics and not logic would decide things. How true. The unitary patent must be a clear case of 'be carfeul what you wish for' and we are now going to see all the good things of European patent unity being destroyed ina failed attempt to solve problems that could be dealt with more effectively.

The unitary patent is not needed to solve translation issues, which results in the huge validation costs of European patents. The London agreement is a great help and wider uptake would improve things further. The countries of Europe will never accept English as a sole language no matter how great 'Google translate' will become, so we are always looking at compromises that can never minimise costs.

There was a call for comments and lobbying on the CIPA Linkedin discussion group, but the information provided by CIPA on their case was minimal and I couldn't follow their concerns or proposed solutions. The lack of comments also demonstrates the apathy of the UKs patent profession who would rather have a moan after-the-event about when they realise that events outside of their own little world actually have a direct effect.

I am personally keen to write to my MP (and have done so on other matters) and even my MEP (and we now have a way of finding out who that is - says everything really!). The question is: what do we say to them? Do we all sit down and write a short(!) essay on the European IP system and our concerns about the proposals, or is there already such a document in existence?

We must, however, all be wary of mass-lobbying of our representatives after the criticisms made in parliament a couple of weeks ago (http://www.guardian.co.uk/voluntary-sector-network/2011/nov/11/ecampaigning-stop-spam)

Since there is an absolute legal obligation to hold debates in public when Council legislation is being discussed, this must mean (assuming that the document is correct, and also that there is no intention to flout the law) that neither of the 2 patent legislative proposals will be discussed. But the litigation treaty might be discussed - since it is not a legislative act.

A discussion on the litigation treaty alone seems to be suggested by the Council presidency press release -

http://pl2011.eu/en/content/patents-compet-council

Also it is clearly confirmed by the official final agenda of the Council -

http://register.consilium.europa.eu/pdf/en/11/st17/st17835.en11.pdf

As to why the 2 legislative measures were taken off the agenda, either a) the presidency perceived no need to discuss them, if Coreper (the Member States' ambassadors to the EU) agreed on the EP/Council deal on Friday; or b) if Coreper did not agree to the deal on Friday, the Presidency withdrew the 2 measures from the agenda because there was a perceived need for more discussion at a less political level.

It is unfortunate that the Brussels press corps is not digging further into what is going on, but I guess they have other developments to focus on...

Most of the German politicians seem well educated and many have a dr. in front their names.

If you had followed the German news at all in the last 12 months, you would know that the "DR" currency, like the Euro, is somewhat debased and in need of a rescue plan. Especially the title of Doctor at law. (That's the most glaring example, but not the only one).

It should also be added that Mr Pagenberg is very nice for pushing its opinion and those of EPLAW. But it shouldn't be forgotten that he and his friends (including Robin Jacob) are advising the Commission on the creation of a patent litigation system for many years. They've drafted the previous proposal (EEUPC) that fortunately was rejected by the ECJ in March 8th 2011, on the grounds that it "would alter the essential character of the powers which theTreaties conf er on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature ofEuropean Union law."

I'm sorry to say that Pagenberg and Jacob and commentators I've read here are maybe very good with regard to patent law (and indeed I was quite pleased with Lord Jacob's ruling on Aerotel/Macrossan) but they do not live in an isolated world where patent law would be decided in a jurisdiction of exception, bypassing other areas of law.

The rejection by the ECJ has nothing to do with anyone living in a microcosm but was simply a matter of jurisdictional power. That decision was a correct interpretation of EU law, but the issue is only one of many to be dealt with. If it is a case of listening to Dr Pagenberg and Jacob, or fully-fledged Eurocrats whose self-interests are the enhancement of a political regime that keeps them in luxury, then I'm with Jacob et al.

It is one thing to come up with a grand political scheme, but then leave it to the experts to make it work, if it is actually possible to do so.

The sudden urgency is a result of the rotating presidential system and no-one likes their term coming to an end without having had an impact and getting a grand scheme approved. This time it is the term of Poland, virgins in the post and looking to score heavily in their final few weeks.

Anyway, we can put it to bed now and stick it all in the new treaty that the Franco-German alliance is about to impose on everyone.

If it is a case of listening to Dr Pagenberg and Jacob, or fully-fledged Eurocrats whose self-interests are the enhancement of a political regime that keeps them in luxury, then I'm with Jacob et al.

I wonder which "fully-fledged Eurocrats" have been argueing against Jacob.

As far as I can see, the lobbying against EPLAW's request does not come from any "Eurocrat", but from the anti-software-patent crowd. However, Mr. Rapkay MEP, who may be a "legal layman", but is clearly an astute enough political operator, probably recognises that it is generally not a good idea to oppose such a well-organised, easily-agitated interest group, on what is arguably an extremely marginal matter for his political constituency...

"I wonder which "fully-fledged Eurocrats" have been argueing against Jacob."

A comment followed naming Mr Rapkay but failed to work out he is one of those Eurocrats. He is, after all, the man who said:

"I am happy to listen to legal experts, but the point is that there are all sorts of differing legal viewpoints but at the end of the day our job is to take a political decision"

If Mr Rapkay was ever in need of urgent medical attention, I wonder whether he would listen to both the experts and those who are firmly against modern medicine, and then ultimately take the political decision not to upset the loonies. Feel free to determine to whom 'loonies' refers.

As for "The patent law should be confronted to other areas of law and only a non-specialised patent judge can guarantee to find the required proportionality between these conflicting rights."

This is a joke, right?

David Cameron must be doing a good job of weakening the "alliance" by not making the UK a big enough common-enemy. Interesting tactics. He can fix things by demanding the tearing-up of the Common Agricultural Policy and an increase in the UKs rebate.

[Shame that all the UK Govt is interested in is reducing workers rights in the UK to make slave labour legal once more (Poundland shops operate by using unpaid labour masquerading as work experience for the unemployed)].

Firstly, Mr. Rapkay MEP is not in any case a "fully-fledged Eurocrat", at least not if "Eurocrat" is taken to mean (as I would), "European bureaucrat". He is a duly elected Member of the European Parliament. Now, that isn't necessarily a compliment either, but let's call a spade a spade. Especially when, as in this case, the very elected nature of the spade is relevant.

Secondly, Rapkay is not himself bothering to argue with Jacob. His whole quote is:

“Experts seem to be unanimous. But here, allow me to assess that in a political way. I could probably find a unanimous agreement of experts of a different view. This impression that experts are all singing from the same hymn sheet and that they want this, I think I have to say that's not an impression I’ve gained. I’ve talked to experts -- I am not suggesting that they are saying the complete opposite -- but those I have asked have said "No, it does not make any sense to get rid of [Articles 6 to 8]."

He merely points out that he's getting conflicting advice from other experts. Unfortunately he doesn't name them, so we are left guessing about their actual qualifications (which may well be very inferior to those of Pagenberg and Jacob), but I don't have any trouble believing that different interest groups will be able to find impressive enough experts to support their own policy proposals. Such is the nature of lobbying, in the EU as elsewhere. "Eurocrats", on the other hand, don't really have a horse in this particular race.

Mr. Rapkay is thus doing the political thing, which is to disregard the conflicting opinions of all those experts and consider instead which decision may be more profitable for him in terms of votes. Loonies may not be very successful in court or business, but they are a not-insignificant portion of the voting population.

Such is the game, and its name is democracy. One may well have the best arguments and the most authoritative experts, but if one can't convince the average voter, or at least a committed and noisy enough constituency, one will almost certainly lose to whichever persuasive loonie is on the other side.

"If it is a case of listening to Dr Pagenberg and Jacob, or fully-fledged Eurocrats whose self-interests are the enhancement of a political regime that keeps them in luxury, then I'm with Jacob et al"

Mr R. is a fully functioning member of the Euro gravy train, if not technically a Eurocrat. My comment is that I am on the side of the experts (Jacob et al) and do not give any weight to the thoughts of Mr R. because they are not based on listening to experts on either side of the argument.

There is no 'other side of the argument' from experts at play here as we haven't heard it, and with this existence of this blog, I would assume that we woud have done. I get the impression that Mr R. hasn't actually listened to other experts as is clear from his comment "Experts seem to be unanimous. ....I could probably find a unanimous agreement of experts of a different view".

Probably, but appears not to have done so.

So, let's consider what sort of weight we should put on the views of experts such as Jacob and his European peers. Well, for starters, they are the people who will be interpreting and applying the law in court and that puts them at the top of the tree for people to listen to. Most legislation is feebly drafted and it is left for judges to 'write the law' based on the legislative texts.

European Union legislation is drafted less clearly than national laws because of the need for compromise. If there is any doubt over this then take a look at the mess associated with the EU Regulation on SPCs and associated case law.

In conclusion, Mr R. is one of those people responsible for creating a mess that causes headaches for business, and judges have to clear up.

There is little democracy in the actions of Euro-MPs as they don't answer to the people. Their electorate have no idea who they are and could care less about the vast majority of issues they vote on. The unitary patent court is one such issue. I certainly don't recall seeing anything in the manifesto my MEP.

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